Sardar ABDUL MAJID KHAN LASHARI vs THE ASIO AFRICAN Co. LTD.
This matter arises from execution proceedings initiated by the respondent pursuant to a decree obtained from the Chief Court of Sind in 1955 and transferred to Lahore. The petitioner judgment-debtor filed objections and subsequently an application under Section 47 of the Code of Civil Procedure challenging the authority of the attorney and the legality of the decree's transfer. The executing court dismissed the application as barred by time, a decision upheld by the High Court in civil revision. The petitioner sought leave to appeal to the Supreme Court. The core legal question was whether any period of limitation applies to an application under Section 47 of the Code of Civil Procedure and whether notice is required for restoring an execution application dismissed in the absence of both parties. The Supreme Court held that the residuary Article 181 applies to applications under Section 47 for which no specific period of limitation is provided, rendering the application time-barred, and that no notice is necessary to restore an execution application dismissed in the absence of both parties. The petition was accordingly dismissed, affirming the limitation bar.
- Does a period of limitation apply to an application under Section 47 of the Code of Civil Procedure?
- Whether Article 181 of the limitation framework applies to applications under Section 47 of the Code of Civil Procedure?
- Is notice required to restore an execution application that was dismissed in the absence of both parties?
- Section 47, Code of Civil Procedure
- Order XXI Rule 66, Code of Civil Procedure
ORDER
1. WAHEEDUDDIN AHMAD, J.-The respondent obtained a decree against the petitioner on the 30th September 1955, from the Chief Court of Sind. On the 14th July 1958, this decree was transferred to Lahore and an execution application was made. The immovable property of the petitioner was attached -and an application under Order XXI, rule 66, was made by the decree---holder- respondent on the 6th March 1959. The petitioner filed objections against these proceedings. He challenged the right of the attorney of the decree-holder to prosecute the case and the transfer of the decree from the Sind Chief Court to the District Judge, Lahore. These objections were dismissed.
2. On the 6th May 1964, the petitioner moved an application under section 47, C. P. C. In which again the authority of the attorney to prosecute and the legality of the transfer of decree was challenged.
3. The learned Executing Court disposed of only issue No. 5 which is as under :- "Whether the present application under, section 47, C. P: C. Is within time."
4. He held that it was barred by time as it could only be made within three years. He further held that the petitioner has been served with the execution of the decree on the 11th March 1960 and the started period of limitation was from this date. The objection was dismissed on the 3rd January 1967. ' The matter was then taken in the High Court in Civil Revision No. 117 of 1967. A learned Single Judge of the High Court has held the applic-3tion under section 47, C. P. C. As barred by time by order dated the 18th November 1971. The petitioner seeks permission to file an appeal against the said order.
5. Mr. Muhammad Hussain Choudhry, learned counsel for the petitioner, has contended that no period of limitation applies to application under section 47, C. P. C. The contention of the learned counsel has not impressed us. Article 181 is a residuary article and it applies to all the matters .In respect of which no period of limitation is provided. In our opinion, the High Court was perfectly justified in holding that the application of the petitioner under section 47, C. P. C. Was barred by time. The learned counsel further contended that once the execution application was dismissed on the 8th June 1966, the executing Court has no authority to restore it without notice to the petitioner.
6. The contention of the learned counsel has no force. The execution application was dismissed in the absence of both the parties. In such circumstances no notice was necessary for the petitioner.
7. There is no force in the petition. The petition is dismissed.
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